On Thursday, the Supreme Court (SC) dismissed the Election Commission of Pakistan’s (ECP) plea, which had requested the top court reconsider its decision about scheduling elections for the Punjab Assembly on May 14.
Chief Justice of Pakistan (CJP) Umar Ata Bandial commented during the hearing that the court would intervene whenever there was a violation of the Constitution.
In an April 4 unanimous verdict, the bench invalidated the electoral body’s choice to extend the polling date in the province from April 10 to October 8, instead setting May 14 as the new date.
The court had additionally instructed the government to allocate Rs21 billion for elections in Punjab and Khyber Pakhtunkhwa, along with providing a security plan to the ECP regarding the elections. The relevant authorities were directed to keep the court informed as well.
Subsequently, the ECP submitted reports to the apex court stating that the then-ruling coalition hesitated to release the funds. The ECP argued that holding staggered polls in Punjab and KP before other regions would incur significantly higher expenses than conducting the elections on same day. They also mentioned that a depleted security apparatus would need several weeks to be mobilized.
The election commission submitted a plea on May 3 asking for a review of the court’s April 4 decision with less than two weeks until the May 14 election date that the court had mandated.
It’s important to note that in June, the former government successfully passed bills amending the Elections Act 2017. These changes empowered the chief election commission to set election dates without requiring input from the president.
Today, a three-member Supreme Court bench consisting of CJP Bandial, Justice Ijazul Ahsan, and Justice Muneeb Akhtar resumed the case hearing. The Supreme Court (Review of Judgments and Orders) Act 2023 consolidated this case in June, but on August 11, the apex court invalidated it.
During the hearing’s commencement, ECP lawyer Sajeel Swati requested an additional week for preparation. However, the CJP instructed the lawyer to present his stance, stating that the bench would review the case.
The lawyer responded, indicating that more time was needed to prepare additional grounds for the case. He emphasized that the key question was who had the authority to determine election dates.
The lawyer contended that this authority now rests with the ECP after amendments to Sections 57 and 58 of the Elections Act 2017.
“Vakil sahib, remember, this is a review plea,” remarked Justice Akhtar. “Don’t introduce points not raised in the original case,” he cautioned.
“From the record, inform us about the errors in the order that necessitate a review,” the judge instructed the ECP lawyer. Swati stated that the Constitution assigned the ECP “responsibility rather than authority.” He noted that the alteration of the date by the president was a significant legal point.
The CJP stressed that the ECP had to exercise constitutional powers to fulfill constitutional responsibilities. Justice Akhtar added that Swati’s arguments were shifting from one point to another.
At one juncture, CJP Bandial stated that the court would intervene whenever there was a constitutional violation. “Nobody owns the Constitution. No one can disregard or deviate from it,” said Justice Akhtar.
The ECP asserted that altering the election schedule fell exclusively within the commission’s jurisdiction according to Section 58 of the Elections Act 2017.
The ECP urged the court to reconsider its April 4 judgment “in the interest of justice.” It emphasized that Article 254 should be utilized to address the constitutional obligation of holding elections within 90 days.
However, the apex court should also consider the ground realities. This provision suggested that failure to adhere to time requirements does not invalidate an action.
The review petition argued that all constitutional provisions must be interpreted harmoniously to ensure effectiveness and meaningfulness. It further claimed that the SC’s April 4 decision was “per incuriam” (lacking jurisdiction) concerning the Constitution and thus needed reevaluation.
The review petition explained that Punjab and KP collectively hold 173 and 55 National Assembly seats out of 326 seats, constituting about 72 percent of the assembly’s total strength.
Given that general elections to the National Assembly were imminent as the assembly’s term would conclude in August 2023, the ECP contended that non-partisan government machinery was necessary to conduct the elections fairly and lawfully.
The ECP requested that the court consider the practical circumstances accurately. It was argued that if elections took place while permanent governments were in power in Punjab and KP, the fairness, impartiality, and objectivity of the elections for 72 percent of the general seats in the National Assembly would inevitably be compromised.
The review petition recalled that the commission’s concerns had been communicated in writing during the hearing that culminated in the April 4 decision. It highlighted the unaddressed matter of harmonizing Article 218(3) and Article 224 alongside the provisions of the Elections Act, which higher courts still needed to tackle.
The petition emphasized that Article 222 protected the ECP from parliamentary intervention and that such intervention could not weaken or diminish its authority.
Regarding a change in the election date, the Constitution remained silent, and thus, Section 58 of the Elections Act came into play, the petition argued. It critiqued the Supreme Court’s reliance on Section 57 of the Elections Act to designate the president as the authority for setting the date when assemblies were dissolved due to the passage of time.
The petition questioned why the Supreme Court assumed the responsibility of appointing a poll date, a task not constitutionally assigned to the judicial branch. According to the petition, changing the election program was solely within the ECP’s jurisdiction under Section 58 of the Elections Act.
The petition stated that the Constitution did not guide altering election dates, and in such silence, the Elections Act was the reference.
The petition underlined that the poll date was a pivotal phase of the election program.
The legislature recognized that situations might arise necessitating changes to election dates when enacting Sections 57 and 58 of the Elections Act. For instance, the general elections in 2008 were delayed by 40 days by the ECP due to difficulties.
Therefore, the legislature included the overriding phrase “notwithstanding anything contained in Section 57” at the start of Section 58(1), fully aware that Section 57 contradicted what Section 58 considered permissible.
The petition emphasized that while courts interpret the law, they don’t rewrite it. According to a strict interpretation of Section 58, altering the election program, including providing a fresh program of which the poll date is a crucial element, falls within the ECP’s domain.
The review petition argued that the Supreme Court had no authority to assume the task of designating the poll date through the April 4 order, emphasizing that the Constitution was an evolving document. The petition emphasized that appointing or changing a date was an executive function, not a judicial one. Source